Chapter: 32 COMPANIES ORDINANCE

Section Num: 80 Version Date 30/06/1997

Registration of charges created by companies

PART III

REGISTRATION OF CHARGES

Registration of Charges with Registrar of Companies

(1) Subject to the provisions of this Part of this Ordinance, every charge created after the fixed date by a company and being a charge to which this section applies shall, so far as any security on the company's property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the particulars of the charge (which must include those specified in subsection (1A) and be in the specified form), together with the instrument, if any, by which the charge is created or evidenced, are delivered to or received by the Registrar for registration in manner required by this Ordinance within 5 weeks after the date of its creation, but without prejudice to any contract or obligation for repayment of the money thereby secured, and when a charge becomes void under this section the money secured thereby shall immediately become payable. (Amended 6 of 1984 s. 46; 3 of 1997 s. 23)

(1A) The particulars referred to in subsection (1) are, the date and description of the instrument creating the charge, the amount secured, short particulars of the property mortgaged or charged, names, addresses and description of mortgagees or persons entitled to the charge, details of any commission, discount or allowance payable to any person in consideration of his agreeing to subscribe to any debenture. (Added 3 of 1997 s. 23)

(2) This section applies to the following charges-

(a) a charge for the purpose of securing any issue of debentures;

(b) a charge on uncalled share capital of the company;

(c) a charge created or evidenced by an instrument which, if executed by an individual, would require registration as a bill of sale;

(d) a charge on land, wherever situate, or any interest therein, but not including a charge for any rent or other periodical sum issuing out of land; (Replaced 6 of 1984 s. 46)

(e) a charge on book debts of the company;

(f) a floating charge on the undertaking or property of the company;

(g) a charge on calls made but not paid;

(h) a charge on a ship or any share in a ship;

(i) a charge on goodwill, on a patent or a licence under a patent, on a trademark or on a copyright or a licence under a copyright.

(3) In the case of a charge created out of Hong Kong comprising property situate outside Hong Kong the delivery to and the receipt by the Registrar of a copy verified in the prescribed manner of the instrument by which the charge is created or evidenced, shall have the same effect for the purposes of this section as the delivery and receipt of the instrument itself, and 5 weeks after the date on which the instrument or copy could, in due course of post, and if dispatched with due diligence, have been received in Hong Kong shall be substituted for 5 weeks after the date of the creation of the charge, as the time within which the particulars and instrument or copy are to be delivered to the Registrar. (Amended 1 of 1949 s. 8; 6 of 1984 ss. 46 & 259; L.N. 283 of 1986)

(4) Where a charge is created in Hong Kong but comprises property outside Hong Kong the instrument creating or purporting to create the charge may be sent for registration under this section notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate. (Amended 1 of 1949 s. 8; 6 of 1984 s. 259)

(5) Where a negotiable instrument has been given to secure the payment of any book debts of a company the deposit of the instrument for the purpose of securing an advance to the company shall not for the purposes of this section be treated as a charge on those book debts.

(6) The holding of debentures entitling the holder to a charge on land shall not for the purposes of this section be deemed to be an interest in land. (Amended L.N. 153 of 1988)

(7) Where a series of debentures containing, or giving by reference to any other instrument, any charge to the benefit of which the debenture holders of that series are entitled pari passu is created by a company, it shall for the purposes of this section be sufficient if there are delivered to or received by the Registrar within 5 weeks after the execution of the deed containing the charge or, if there is no such deed, after the execution of any debentures of the series, the following particulars-

(a) the total amount secured by the whole series; and

(b) the dates of the resolutions authorizing the issue of the series and the date of the covering deed, if any, by which the security is created or defined; and

(c) a general description of the property charged; and

(d) the names of the trustees, if any, for the debenture holders, together with the deed containing the charge, or, if there is no such deed, one of the debentures of the series:

Provided that, where more than one issue is made of debentures in the series, there shall be sent to the Registrar for entry in the register particulars of the date and amount of each issue, but an omission to do this shall not affect the validity of the debentures issued.

(8) Where any commission, allowance, or discount has been paid or made either directly or indirectly by a company to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any debentures of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any such debentures, the particulars required to be sent for registration under this section shall include particulars as to the amount or rate per cent of the commission, discount, or allowance so paid or made, but omission to do this shall not affect the validity of the debentures issued: (Amended L.N. 153 of 1988)

Provided that the deposit of any debentures as security for any debt of the company shall not for the purposes of this subsection be treated as the issue of the debentures at a discount.

(9) In this Part-

"charge" includes mortgage;

"the fixed date" means in relation to the charges specified in paragraphs (a) to (f), both inclusive, of subsection (2), 1 January 1912, and in relation to the charges specified in paragraphs (g) to (i), both inclusive, of the said subsection, the commencement of this Ordinance.

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